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Mandatory vaccination policies in condos

When we first blogged on vaccination in condos in January, it sounded straight out of science fiction! But, as was the case with other COVID-related restrictions, the situation and social views have evolved. And so here we are, wondering whether Vaccination Policies are (or will shortly be) required in condos.

Ontario requiring vaccination policies

On September 1, 2021, Ontario announced that it is imposing a so-called vaccination passport and will require proof of vaccination in certain settings. Until the regulations are adopted, we are basing the below information on Ontario’s press release and the live press conference.

Where proof of vaccination is required

As of September 22, Ontarians will be required to provide proof of their vaccination status (along with a photo ID) to access certain businesses, facilities and settings. In our view, this may include certain facilities in condos. Time will tell.

Today’s announcement confirmed that proof of vaccination will be required for the following condo-relevant settings:

  • Indoor meeting and event spaces; and,
  • Indoor sports and fitness activities and personal fitness training, such as gyms, fitness and recreational facilities (with the exception of youth recreational sports).

We don’t know yet whether exceptions will apply to these settings in condos but, considering that no such exception was adopted when imposing masks and face covering, we suspect that proof of vaccination will also be required for condo gyms.

Where proof of vaccination is not required

Today’s announcement confirmed that proof of vaccination will not be required for outdoor settings, including patios.  It is fair to assume that the outdoor exception will also apply to condos.

Young Ontarians who are ineligible to be vaccinated (less than 12 years old) will also be exempt from having to provide proof of vaccination.

Medical exemptions

Medical exemptions will be permitted but those needing to benefit from this exception will need to provide a medical note (until medical exemptions can be integrated as part of a digital vaccine certificate). Thankfully, today’s announcement did not leave us in the uncomfortable position created by mask regulations where Ontarians were able to simply state they were exempt without having to provide any proof of it.  Things will be much clearer and easier to implement if those seeking an exemption are required to provide some basic proof supporting their requests.

Public Health Units vaccination policies

Prior to the adoption of a provincial vaccination passport, on August 24, 2021, Ontario discretely amended its regulation under the Reopening Ontario Act to expressly:

…require businesses and organizations to establish, implement and comply with COVID-19 vaccination policies based on advice, recommendations and instructions issued by the Office of the Chief Medical Officer of Health…

This means that, when and if Medical Officers of Health recommend the adoption of vaccination policies, businesses and organizations (this includes condos) will have to adopt and implement such policies.

Some public health units in Ontario, such as Toronto, Halton and Peel and, to a lesser extent, Ottawa have recommended that businesses and organizations adopt workplace vaccine policies. To some degree, these public health units left open to individual businesses and organizations to determine the precise scope and content of these policies.

We list below the vaccination policy requirements (if any) for the following Public Health Units.  You don’t need to read it all.  Scroll down to the Public Health Unit of interest to you.

Ottawa

On September 2, Ottawa Public Health went from “welcoming” the adoption of vaccination policies to strongly recommending that all Ottawa employers implement workplace vaccination policies to reduce the risk of COVID-19 transmission. It is to be noted that the City of Ottawa itself adopted a policy requiring vaccination for all of its employees, volunteers and contractors.

In our view, any condo corporation with employees, contractors or staff on site should adopt and implement a vaccination policy.

Toronto

Toronto’s Public Health Unit went further. On August 20, 2021, it issued a statement strongly recommending that local employers institute a workplace vaccination policy to protect their employees and the public from COVID-19. Toronto Public Health recommends that such workplace vaccination policy require at minimum that:

    • Workers provide proof of their vaccination;
    • Unvaccinated employees provide written proof of a medical reason from a physician or nurse practitioner that includes whether the reason is permanent or time-limited;
    • Unvaccinated workers complete a vaccination education course on the risks of being unvaccinated in the workplace.

The way we read this, if you condo has staff/employees on site and is located within the Toronto Public Health region, you must adopt a vaccination policy.

You can find more information on the above on Toronto’s COVID-19: Vaccine Information for employers.

Peel

Peel strongly recommends that employers consider the promotion of COVID-19 vaccination to workers. It recommends proof of vaccination only “where the need for vaccination is identified.”  Specifically, Peel strongly recommends that all employers review and update their COVID-19 workplace Safety Plans to:

    • Promote COVID-19 vaccination to workers;
    • Outline actions for unvaccinated workers, as necessary; and
    • Identifying workers’ vaccination status for outbreak prevention and control.

Where the need for vaccination is identified (in higher risk settings) the vaccination policy should require employees to provide proof of complete vaccination or written proof of a medical reason why vaccination was not obtained.  This written proof would need to come from either a physician or nurse practitioner.

York

York Public Health Unit does not appear to currently have a recommendation regarding workplace vaccination policies. Currently, pursuant to a direction dated April 2, 2021, York Public Health Unit only requires employers to provide information to workers about vaccination where workers are prioritized by the Ontario Ministry of Health to receive COVID-19 vaccination, such as health care workers.

Halton

Halton’s Medical Officer of Health, Dr. Hamidah Meghani, is recommending that local employers address the need for a workplace vaccination policy to protect their workers and the public from COVID-19.  In Halton, workplace vaccination policies should explain their purpose, specific actions workers must take (including providing proof of vaccination status or a medical exemption) and timelines.

Halton has published a useful vaccination information page for employers.

Hamilton

Hamilton Public Health Unit does not appear to currently have a recommendation regarding workplace vaccination policies. However, a recommendation is likely imminent. Hamilton recently approved a mandatory vaccine policy for all city employees on August 26, 2021. Hamilton may follow in the footsteps of Toronto, which announced a mandatory vaccine policy for city employees shortly before making a recommendation for vaccine policies for all employers in the city.

What about in condos?

As we read it, vaccination policies are now required in workplace settings of a condos in certain Public Health Units (such as Toronto and, in certain cases, in Peel). Certainly, the writing is on the wall for everyone: vaccination policies are more likely than not to be required in the very near future.  Now is the time to start working on them.

We also recommend that condos adopt a policy for contractors and other staff attending the property.

For now, vaccination policies are not mandated for occupants or residents using indoor amenities. Having said that, there is no doubt that condos have the authority and ability to adopt such policies. This authority is based on the condominium’s statutory duty to:

  • ensure the property is reasonably safe (s. 26 of the Condo Act)
  • control, manage and administer the common elements (s. 17)
  • prevent dangerous conditions/activities to exist, and (s. 117)
  • maintain a safe and healthy workplace.

Some may ask about the rationale to adopt a policy requiring proof of vaccination for those using interior amenities. I think the rational is simple: indoor amenities were closed earlier this year to minimize risk of transmission and to protect users.  These closures were required, in part, on the basis that masks and cleaning may not provide adequate protection.  What has changed since is the development and access to vaccines. But that only helps reduce the risk for those who are vaccinated.  Those who are unvaccinated continue to be exposed to the same risk they were exposed when amenities were closed. Nothing has changed for them. If it made sense to close amenities earlier this year to protect the unvaccinated (all of us), it may continue to make sense now for those who are not vaccinated.

Anyways, we may not be there yet but I think all signs point in the direction of requiring proof of vaccination for the use of certain amenities. Let’s wait and see what the province implements in a couple of days.  This will help shed some light on the direction condos may want to take.

Let it be clear before hate-mail starts rolling in, in my view any vaccination requirement would only apply to non-essential indoor amenities (gyms, pools, game rooms, meeting rooms….). Unless the landscape changes drastically, I can’t see condos preventing unvaccinated owners from using the elevator.

What should go in a vaccination policy?

The target is still moving on what should go in a vaccination policy. Each Public Health Unit may have its own requirement and, as importantly, each condo corporation may have its own needs. A highrise, high-density condo with numerous indoor amenities would have needs which would vastly differ from a smaller or a townhome condo setting without indoor amenities.

Certainly, any vaccination workplace policy must adhere to the Occupational Health and Safety Act, the Ontario Human Rights Code and privacy laws

So far, Toronto Public Health provides the best summary of key points to be included in your policy:

  • An educational component to encourage vaccination and educate on the benefits of it;
  • Mandatory proof of vaccination when necessary to prevent the spread of COVID-19;
  • Bona fide medical exceptions when supported by a written statement from a licenced doctor or nurse practitioner (no need to include the reason for the exemption);
  • Deadlines by which compliance must be met;
  • A list of available support for vaccination;
  • Possibly paid leave to get vaccinated (and even perhaps if side-effects affect one’s ability to work);
  • Alternatives must be granted for workers who decline vaccination for reasons protected by the Human Rights Act or who are unable to complete their vaccination series for medical reasons.  These alternative could include the use of additional PPE; frequent tests, the use of vacation time or unpaid leave;
  • List the potential consequences for workers who do not fulfill the policy requirement;
  • Privacy considerations must be included in your policy by providing how someone’s vaccination status will be used by the employer to mitigate health-related risks of covid transmission:
    • How will you safeguard the personal health info;
    • Limit the collection of information to the worker’s name and date of vaccinations for each dose;
    • Keep vaccination info separate from the employee’s file; and,
    • Ensure that personal health/vaccination info is kept in a secure manner.
  • Identify a contact person for any question about the policy, accommodation possibilities and how to comply with the policy.

We have a solid vaccination policy for our clients wishing to adopt one. Don’t hesitate to ask us how we can develop a flexible and fair vaccination policy for you.

We suspect we will be blogging some more about this in the very near future.

Don’t miss our webinar Wednesday at 5pm to hear more on this.

Thanks

Thanks to our brilliant Daniel Yang for his help collating information from each public health unit. An amazing #condogeek in the making!

 

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Ontarians can book a vaccine appointment here.

You can download your proof of vaccination here.

 

Updated Sept. 6, 2021 at 12:15pm


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